Citation Nr: 0218019
Decision Date: 12/12/02 Archive Date: 12/18/02
DOCKET NO. 01-01 415A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to service connection for post-traumatic
stress disorder (PTSD).
(The issue of entitlement to an effective date earlier
than March 29, 1982, for a grant of service connection for
schizophrenia will be the subject of a separate decision.)
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and C. G.
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to April
1971 and from March 1972 to May 1972 and from November
1975 to March 1976. The veteran was awarded two Purple
Heart Medals for his service in the Republic of Vietnam.
This appeal to the Board of Veterans' Appeals (Board)
arises from a rating decision in June 1996 by the New
Orleans, Louisiana, Regional Office (RO) of the Department
of Veterans Affairs (VA).
The Board notes that the veteran is in receipt of an
evaluation of 100 percent for a schizophrenic disorder
from March 1982.
On May 10, 2000, the veteran appeared and testified at a
personal hearing before the undersigned Member of the
Board at the RO. A transcript of the hearing is of
record.
FINDINGS OF FACT
1. The veteran engaged in combat with the enemy in
Vietnam.
2. The veteran has been diagnosed with PTSD.
3. By regulation, the veteran's account of his combat-
related stressor is presumed credible and there is no
evidence of record contradicting his account of his combat
stressors.
CONCLUSION OF LAW
PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 1991 & Supp. 2002); 38 C.F.R. § 3.304(f)
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that, on November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all pending claims for VA benefits and provides
that VA shall make reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate the
claimant's claim for a benefit under a law administered by
VA. The VCAA also provides that VA shall notify the
claimant of any information, and any medical or lay
evidence not previously provided to VA, which is necessary
to substantiate the claim and whether VA or the claimant
is expected to obtain any such evidence. See Quartuccio
v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002).
In the instant case, the Board finds that VA has complied
with the requirements of the statute. The veteran has not
identified any evidence which may be pertinent to his
claim which the RO has not obtained and considered. The
RO notified the veteran of the requirements in law to
establish entitlement to the benefit which the veteran is
seeking. As this decision by the Board grants the
veteran's claim, no further evidence to substantiate his
claim is needed. The Board concludes that all reasonable
efforts were made by VA to obtain evidence necessary to
substantiate the veteran's claim and that the notice
provisions of the VCAA have been complied with. The Board
finds that there will be no prejudice to the veteran if
the Board decides his appeal at this time and the Board
will, therefore, proceed to consider the veteran's claim
on the merits. See Veterans Claims Assistance Act of
2000, 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66
Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)); see
also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Service connection means that the facts, shown by
evidence, establish that a particular injury or disease
resulting in disability was incurred in the line of duty
in the active military service or, if preexisting such
service, was aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303(a)
(2001). Service connection may be granted for any disease
diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2002).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a); a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred. If the evidence establishes that the
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of
clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish
the occurrence of the claimed in-service stressor.
38 C.F.R. § 3.304(f) (2002).
In the veteran's case, there are diagnoses of both
schizophrenia and PTSD. In April 1996, a VA psychologist
and other members of a substance use and PTSD clinical
team diagnosed PTSD, schizophrenia, and alcohol
dependence. At a VA psychiatric examination in October
1997, the diagnoses were schizophrenia, paranoid type,
chronic, and alcohol dependency in self-reported
remission. The psychiatric examiner commented that the
veteran might also be suffering from PTSD. In June 1998,
a private physician noted that the veteran had a history
of PTSD. At a VA examination in February 2000, conducted
by a psychologist, the pertinent diagnosis was paranoid
schizophrenia, and PTSD was not diagnosed. The examiner
in February 2000 found that the veteran's symptoms did not
meet the criteria for a diagnosis of PTSD.
In a case before VA with respect to benefits under laws
administered by VA, the law provides that VA shall
consider all information and lay and medical evidence of
record. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, VA shall give the benefit of
the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West
Supp. 2002).
Upon consideration of the diagnoses rendered in the
veteran's case, the Board finds that there is an
approximate balance of positive and negative evidence on
the issue of whether a diagnosis of PTSD is appropriate.
Resolving the doubt in the veteran's favor, the Board
finds that he does have a diagnosis of PTSD.
The veteran has been awarded 2 Purple Hearts for wounds
sustained in combat during his Naval service in the waters
of Vietnam. The Board finds that he is a combat veteran.
In written statements and in personal hearing testimony,
he has described stressful combat experiences, including
witnessing the deaths of fellow service members. In the
absence of any clear and convincing evidence to the
contrary, and in view of the fact that his claimed
stressors are consistent with the circumstances,
conditions, or hardships of his service, his lay testimony
alone establishes the occurrence of the claimed in-service
stressors. See 38 C.F.R. § 3.304(f) (2002).
The Board concludes that all requirements for service
connection for PTSD have been met, and entitlement to that
benefit is established. 38 U.S.C.A. § 1110 (West 1991 &
Supp. 2002); 38 C.F.R. § 3.304(f) (2002).
ORDER
Service connection for PTSD is granted.
F. Judge Flowers
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.